Client Alert!
U.S. Citizenship and Immigration Services (USCIS) announced a Federal Register notice (FRN) providing updated procedures for submitting a Form I-140, Immigrant Petition for Alien Workers, accompanied by a permanent labor certification, application for Schedule A designation, or national interest waiver (NIW) request.
On June 1, 2023, the U.S. Department of Labor (DOL) implemented a new system for permanent labor certifications, called the Foreign Labor Application Gateway (FLAG), and revised the Application for Permanent Employment Certification (Form ETA-9089) for use within the FLAG system. The revised Form ETA-9089 collects more detailed information about the job opportunity, including specific worksite locations, telecommuting options, and the foreign worker’s qualifications. Employers who file Form ETA-9089 through the FLAG system and who receive a labor certification approval generally receive a 2-page Final Determination from DOL electronically.
The instructions to Form ETA-9089 state that only a signed Final Determination must be submitted with the Form I-140 petition as evidence of a permanent labor certification approval. This limited requirement is because, as a part of this process change, USCIS receives most of the information about the permanent labor certification directly from DOL under a data sharing agreement.
USCIS is announcing through this FRN that employers whose labor certifications were processed in the FLAG system must include a printed copy of the electronic Final Determination with their Form I-140, and that USCIS will consider this printed copy as an original, approved labor certification. The Final Determination must be completed and electronically signed by DOL, and must be signed by the foreign worker, employer, and the employer’s attorney or agent, if applicable. In addition, the FRN states that Form I-140 petitions for Schedule A occupations must contain a completed, uncertified Form ETA-9089, including all applicable appendices, a signed Final Determination, and a valid prevailing wage determination tracking number in Section E, Item 1 of the Form ETA-9089. Finally, the FRN states that a Form I-140 petition with an NIW request must contain a copy of the Form ETA-9089, Appendix A, and a signed Final Determination.
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